Ernest Lee Malone, Petitioner-appellant, v. Jerry Steiner; Attorney General of the State of California,respondents-appellees, 51 F.3d 281 (9th Cir. 1995)

MEMORANDUM^** 

Ernest Lee Malone, a California state prisoner, appeals from the district court's order denying his request for an evidentiary hearing on his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for murder and robbery. We dismiss the appeal for lack of jurisdiction.

We have jurisdiction to review a final order in a habeas proceeding. 28 U.S.C. §§ 1291, 2253. An order is final if it grants or denies all of the relief requested and leaves nothing to do but execute the judgment. Blazak v. Ricketts, 971 F.2d 1408, 1410 (9th Cir. 1992) (per curiam). If the finality of an order is ambiguous, we look to the intent of the district court. See id. Here, the district court denied Malone's request for an evidentiary hearing but did not rule on the merits of his habeas petition. Although the district court granted a certificate of probable cause to allow Malone to appeal, the court did not enter a separate, final judgment pursuant to Fed. R. Civ. P. 58. Accordingly, we lack jurisdiction to review the district court's non-final order. Cf. id.

DISMISSED.